Grimes v. Simpson Centenary College

42 Iowa 589 | Iowa | 1876

Seevers, Ch. J.

I. The contract between Eeichard and the defendant was left with Thomas Davis. There was but one original contract; all others referred to in the testimony were alleged copies. Davis, at the time the contract was made and left with him, lived at Indianola, Iowa.and so did all the other parties. Before the trial Davis had left Indianola, and at the time of the trial was residing at Leavenworth, Kansas. The testimony of Davis was not taken, and there was no positive and direct evidence showing where or who had the contract at the time of the trial, or that it was lost or mislaid. Some of the witnesses state that during the time Davis resided at Indianola they saw the contract at the bank. There are three witnesses who testify on this subject, the plaintiff, Hess, and David Hallara; the latter being one of the trustees of defendant. The plaintiff testifies that he saw it in 1868 in the possession of Thomas Hallam, at David Hallam’s bank, and Hess testifies to the same thing; the probability being that they both saw it at the same time. The testimony of Thomas Hallam was not introduced, and David Hallam states the only contract ever in his possession was one signed by him, and this was not so signed.

1. EVIDENCE: copy of a writing Under these circumstances the court admitted in evidence ^n alleged copy, against the objection of the defendant. In this there was clear and manifest error, The rule is clear and well settled, that before a copy of a writing can be introduced in evidence, the loss of the original must be satisfactorily shown. If the testimony of Davis and Thomas Hallam had been taken, much that now remains in doubt would have been made clear. It is urged, however, that the parties who signed the contract in behalf of defend! ant “made no question as to the correctness of the copy when on the stand as witnesses.” Admitting this to be true, and yet we know of rib authority that will justify the admission of the copy under such circumstances, certainly no such authority has been cited by counsel.

2._____:contract: construction, II. In the construction of a written contract, the circumstances surrounding its execution may be introduced in evidence for the purpose of aiding the court m . , . . , , properly construing it, where there is any doubt or ambiguity on its face. But where no such doubt exists, the rule is well settled, that the terms and conditions of the writing alone must determine the construction. It is doubtful, for instance, whether the plaintiff was one of the persons included within the terms of the contract; it was, therefore, proper to introduce evidence to dispel such doubt. But it was not proper, upon any sound and acknowledged principle, to admit the declarations of Eeichard, as to what the parties intended, or what he intended, by the contract, or as to its meaning. In such matters as these the writing must speak for itself, for on its face it is clear and explicit. The only' possible doubt is as to the time the mechanics were to be paid, but, as to this, even the declarations of Eeichard as to the meaning and intent of the parties, were inadmissible.

3. INSTRUCTION: applicability. III. The first clause of the fifth instruction is clearly erroneous for the reason there is no evidence tending to show that Beichard was in any way released by plaintiff from paying the indebtedness. It is equally clear, however, that the promise of Beichard to finish the buildings was a sufficient consideration to support the promise of the defendant to pay the mechanics. Such being true, the plaintiff was not driven to the necessity of relying on any or either of the matters stated in said instruction in order to show a consideration for the promise. Upon a re-trial, the sixth and seventh instructions should be modified so as to meet the views herein expressed as to the fifth instruction.

IY. In view of. a re-trial, we desire to make some suggestions, without regarding ourselves absolutely bound thereby. 1. We incline to think there was no error in refusing the third instruction asked by defendant, for the trustees had full and explicit knowledge of the contract, and having recognized it by making payments in accordance with its terms, the defendant is estopped from repudiating it on the ground of a want of authority in the persons signingit. If this be true the fourth instruction was rightfully refused. We also incline to think, looking at the contract alone, the fair construction to be given to it is, that the plaintiff and other mechanics were to be first paid; that is, paid as soon as the contract was signed and the bond given by Beichard, and if the defendant afterward paid Beichard money on the contract, such bond was waived, and defendant is now estopped from insisting on that as a defense. If we are correct in this, then instruction five and a-half was properly refused; and this is true as to the ninth instruction. As to the sixth, seventh and eighth instructions, we incline strongly to think they should have been given. There was evidence tending to support the theory of these instructions, as the contract, order given by Beichard on the defendant in favor of the plaintiff, and the qualified acceptance thereof, are all dated on the same day, and the question whether they constituted one transaction, in the light of the other testimony as to when they were severally executed, was for the j ury to determine. Ewnusun.